Dane County Municipal Employees Union Local 60, Council 40, AFSCME,
AFL-CIO, hereafter
Union, and Monona Grove School District, hereafter District, are parties to a collective
bargaining
agreement that provides for final and binding grievance arbitration. On November 13, 2006,
the parties
jointly requested that the Commission appoint Staff Member Coleen A. Burns as arbitrator to
hear and
decide the grievance on the discharge of Mr. Ness. A hearing was held in Madison,
Wisconsin on March
6 and April 9, 2007. The hearing was transcribed and the record was closed on August 13,
2007, upon
receipt of the parties' post-hearing written argument.

ISSUES

The parties stipulated to the following statement of the issues:

Did the employer have just cause to discharge the Grievant?

If not, what is the appropriate remedy?

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MA-13533

CITED CONTRACT LANGUAGE

ARTICLE IV ­
PROBATION

4.01 All newly hired employees shall be considered probationary for the first
six (6) months of employment. Probationary employees shall have all rights provided by
this Agreement except as are specifically limited. Probationary employees may be
disciplined or discharged and such action by the Employer shall not be subject to
Article X, Grievance Procedure during their probationary period. The probationary
period
for part-time employees shall be one thousand forty (1,040) hours or one (1) calendar
year, whichever is less.

4.02 All newly hired employees, if still employed on the first day of the pay
period following the probationary period, shall be considered to have satisfactorily
completed their probationary period and no other notice of their permanent status shall be
necessary.

. . .

4.04 Upon completion of the probationary period, employees may be
disciplined or discharged, but only for just cause. Any employee being suspended or
discharged for whatever reason shall receive written notice of the disciplinary action and
the reasons therefor.

. . .

ARTICLE V ­ HOURS OF WORK AND
OVERTIME PAY

5.01 Appendix A. Classification and Salary Schedule shall be
and remain a
part of this Agreement for the life hereof. Employees shall be paid every other Friday. An
attachment to the check stubs shall indicate hours worked, overtime paid and deductions
made.

a) The regular schedule of hours for regular full-time employees shall be
eight
(8) hours per day, Monday through Friday, forty (40) hours per week. The schedule shall
be established in advance by the Employer and not less than one week advance written
notice shall be given in the event of any schedule change. A one-half (1/2) hour lunch
period shall apply during the summer work schedule, on non-teaching contract days and
when a school day is scheduled for one-half (1/2) day.

. . .

ARTICLE XIV ­ MANAGEMENT
RIGHTS

The Board shall have the right to determine the number of employees to be
employed,
the
duties of each employee, the place of their work, and all other matters pertaining to
management and operation of the District, including the following:

1. To direct the employees, including the right to assign work and
overtime;

2. To establish and require observance of reasonable work rules and
schedules;

3. To hire, examine, classify, promote, train, transfer, assign in positions
with
the school system;

4. To increase, reduce, change, modify or alter the composition in size of
the
work force, including the right to relieve employees from their duties because of lack of
work, and to suspend, discharge or take other disciplinary action against employees for
just cause;

5. To contract out for goods or services, but Employer would have to
bargain
impact;

6. To take whatever action is necessary to carry out the functions of the
school system in situations of emergency and to take whatever action necessary to comply
with state and federal law;

7. To change or eliminate existing methods, equipment or facilities, and to
introduce new or improved methods or facilities.

The exercise of the foregoing shall be limited to the terms of this Agreement.

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BACKGROUND

The Grievant began his employment with the District in 1992. At the time of his
discharge, the
Grievant was employed by the District as Head Custodian/Night Shift Coordinator at
Winnequah Middle
School. The Grievant's primary responsibilities were to perform routine cleaning and
custodial duties;
coordinate evening custodial duties with the day Head Custodian; and provide work direction
to the two
other night shift Custodians at Winnequah, Dan Marron and Kevin Meicher.

The Grievant was paid by the District as an hourly employee. While employed by
the District, the
Grievant was entitled to a one-half hour unpaid lunch break, during which time the Grievant
was free to
leave the worksite, and a fifteen minute paid break, during which time the Grievant was
expected to remain
at the worksite.

Except for Christmas, spring, and summer breaks, the night shift employees,
including the Grievant,
had a regular work shift of 2:30 p.m. to 11:00 p.m., Monday through Friday. As a Head
Custodian, the
Grievant was expected to attend the Head Custodian meeting which was regularly held at
2:00 p.m. on
Fridays. The District has seven Head Custodians in addition to the Grievant. As the
District's Director
of Facilities and Safety, Mark Scullion supervised the District's custodial staff, including the
Grievant.

The Grievant was asked to report to the District office on June 6, 2006. When he
arrived at
Supervisor Scullion's office, he was informed that the District was conducting an
investigation. The
Grievant was offered the opportunity to have Union representation; which the Grievant
declined. On June
6, 2006, in the presence of Supervisor Scullion, the Grievant was interviewed by District
Director of
Business Services, Mary Ellen Van Valin. At the conclusion of this interview, the Grievant
was informed
that he was being placed on a paid suspension pending the District's completion of its
investigation.

On June 13, 2006, the Grievant was verbally informed by District Director of
Business Services
Van Valin that he was being discharged from his employment. On June 14, 2006, District
Director of
Business Services Van Valin sent the Grievant a letter that states:

This letter is to officially notify you that as of 4 P.M. on Tuesday, June 13, 2006,
your
employment with the Monona Grove School District has been terminated. This termination
is for "Just Cause." Please be informed that you are not to be present on school grounds
at anytime.

On or about June 16, 2006, the Grievant filed a grievance alleging that his discharge
violated Article
IV, Paragraph 4.04, and Article XIV, Paragraph 4, of the parties' collective bargaining
agreement, as well
as any other applicable provision. In remedy of the alleged violation of the parties'
collective bargaining
agreement, the Grievant requested that the disciplinary action be rescinded; that the Grievant
be reinstated
and made whole; and any and all other appropriate remedy(ies).

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MA-13533

By letter dated June 26, 2006, District Director of Business Services Van Valin
advised the
Grievant of the following:

Per Article IV, paragraph 4.04, of the Local 60 AFSCME Agreement for 2004-2006,
I
am placing in writing the verbal reasons that were stated to you on
June 13th when you
were terminated for "Just Cause". The reasons that were stated are:

Knowingly and admittedly falsifying both paper and electronic ("True Time")
timecards for
approximately a three-year period of time.

Knowingly and admittedly defrauding the District of payroll attributable to time not
worked
for approximately a three-year period of time.

Knowingly and admittedly lying to Administration during the investigative meeting
that
occurred on June 6, 2006.

The grievance was denied and, thereafter, submitted to arbitration.

POSITIONS OF THE PARTIES

District

The standard to be applied by the Arbitrator is to determine whether the District has
shown by a
preponderance of the evidence that the Grievant committed the acts cited as reasons for the
discharge and
whether the discharge is appropriate given the acts committed by the Grievant. The
Arbitrator should not
credit the Grievant's claim that, in attending AA meetings during his work shift, he had Mr.
Scullion's
permission. Rather, the Arbitrator should find that the Grievant was discharged with just
cause for having
engaged in a pattern and practice of working less than his reported work time and knowingly
submitting
false time cards.

The Grievant's initial attempt to conceal his absences during the investigation, as well
as his failure
to leave work to attend AA meetings during the time that Mr. Scullion conducted the audit at
Winnequah
School, indicate that the Grievant did not believe that he had Mr. Scullion's
permission to attend AA
meetings on the clock, as he claimed. By the Grievant's own testimony, he "guessed" that
he had such
approval.

The notion that his supervisor only cared that he got his work done and that his
supervisor would
approve the Grievant working less than the forty hours for which he was paid so that the
Grievant could
attend AA meetings is ludicrous. The Grievant did not have a reasonable belief that his
conduct was known
to and approved by his supervisor.

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MA-13533

Time-card falsification is considered a form of theft. Arbitrators generally hold that
an employee
does not need a rule to advise the employee that theft is wrong and a dischargeable offense.

If the employee has acted knowingly and willfully, arbitrators generally uphold
discharge.
Employee intent can be shown through an employee's admission or attempt to conceal
information during
a subsequent investigation. Some arbitrators reduce penalties in the face of traditional
mitigating factors,
such as good work record, lengthy service and minimal value of the item taken; but such
mitigating factors
are given less weight where there is serious dishonesty and the employee's job requires
trustworthiness.

As Head Custodian, the Grievant is required to lead, direct and coordinate the work
of two other
Custodians. The Grievant's work is largely unsupervised and he has keys that provide
access to most,
if not all, of the school building. The Grievant's trustworthiness is an especially important
consideration to
the District. The Grievant's prevarications when questioned by Ms. Van Valin rebut the
Union's claim that
the Grievant has been "forthright."

There should be no question that the Grievant acted intentionally. For up to three
years, the
Grievant had been leaving work for an hour or more almost every night without indicating
his absence on
his time-cards. The record establishes that the District advised the custodial staff, including
the Grievant,
of the importance of accurately reporting time and how to prepare time reports.

The Grievant provided no records to substantiate his claim that he made up time
missed while
attending AA meetings. The Grievant could not specify when he made up any time and
acknowledges that
he did not make up all of the time. Fellow employees testified that, despite being gone from
Winnequah
some time between 6 and 8 p.m. five days per week, the Grievant would also take his half
hour lunch break
later in the shift and leave at the end of his regular shift. During the June 6, 2006 meeting
with Ms. Van
Valin, the Grievant initially stated that he usually took his duty-free thirty minute lunch break
from 9 to 9:30
p.m. Although the Grievant often came to work early, he was not observed to be working,
but rather, was
observed to be sitting at a break table.

During the three days that the District had the Grievant under surveillance, the
Grievant was gone
from Winnequah for over an hour each day, which absence was not recorded on the Tru
Time system.
Although the Grievant claims that at least 45 minutes of this time was his own, on two of
those days he
recorded having taken a half hour lunch break. Clearly, the Grievant was routinely absent
for more than
his 45 minute break and lunch period without making up for such absence.

The Grievant was entitled to understanding and cooperation from his employer in
dealing with his
problem with alcohol; which he received from Mr. Scullion. The Grievant was not entitled
to a full day's
pay for less than a full day's work. The Grievant's misconduct

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MA-13533

may be distinguished from that of Mr. Schroeder in that Mr. Scullion had no reason to
believe that Mr.
Schroeder has extended his lunch hour on more than a couple of occasions and, when
confronted by Mr.
Scullion, Mr. Schroeder immediately admitted his culpability.

The Grievant has engaged in egregious time-card falsification and, thus, was properly
discharged.
However, if the Arbitrator should conclude that the penalty for the Grievant's misconduct is
excessive, then
the Arbitrator should not return the Grievant to his Head Custodian position, or award back
pay or
seniority.

Union

As set forth in the stipulated issue, the Arbitrator must determine whether or not the
District has just
cause to discharge the Grievant. "Just cause" is not explicitly defined in the parties'
collective bargaining.
Many arbitrators, in applying the just cause standard, consider the following:

Did the Employer prove that the Grievant is guilty of misconduct in which the
Employer had a disciplinary interest?

If so, is the punishment imposed commensurate with the severity of the proven
misconduct?

Are there mitigating or aggravating circumstances which justify consideration?

Consideration of the above questions, leads to the conclusion that the District does not
have just cause to
discharge the Grievant.

While the "preponderance of the evidence" is the appropriate standard in "ordinary
discipline and
discharge cases," this is not an ordinary case. The Grievant has been charged with criminal
conduct; been
threatened with prosecution; has had his reputation sullied; and the discharge, if upheld, will
affect his future
employment opportunities. Given the nature of the charges against the Grievant, arbitrators
generally
require a higher quantum of proof, i.e. clear and convincing evidence.

The Grievant had approached his supervisor; had informed his supervisor of his
desire
to attend
AA meetings; and received a favorable response from his supervisor. The Grievant had a
reasonable basis
to believe that his conduct was known to and approved of by his supervisor.

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MA-13533

Following their initial conversation about the Grievant's attending AA meetings
during work time;
Supervisor Scullion understood that the Grievant would get back to him. When the Grievant
did not do
so, Supervisor Scullion should have considered that there had been a misunderstanding and
that he needed
to check with the Grievant on what the Grievant understood. Supervisor Scullion did not do
so.

The Grievant did not sneak about. The Grievant made no secret to his co-workers of
his activities;
wore his uniform to the AA meetings; and made no secret that he was there during his work
shift. When
confronted by Director of Business Services Van Valin, he did not deny leaving the
workplace and
admitted that it had been going on for three years.

The Grievant may have underestimated the amount of time that he was gone from the
building;
which may make him guilty of having a faulty memory; but not a liar and, therefore, a thief.
Neither the
Grievant, nor the District, has any idea if the Grievant owed the District time, or if the
District owed the
Grievant time.

Prior to the introduction of the Tru Time system, employee time records consisted of
hand written
forms filled out every two weeks. Employees were not held to strict start and end times and
the objective
was to put in your eight hour, forty-hour week, and get your work done. Given the
long-standing practice
of loose adherence to start and quit times, it is understandable that the Grievant believed that
his conduct
was acceptable.

Information contained on the Grievant's time cards and Tru Time reports was not
accurate and in
accordance with procedures established by the District. The Grievant, however, did not have
any intent
to defraud the District.

The District criticizes the Grievant's "honesty" at the June 6th
investigatory meeting with Director
of Business Services Van Valin. Given the lack of notice and the gravity of the situation, as
presented by
management, the Grievant was understandably flustered and, under the circumstances,
reasonably
forthright. Indeed, without prompting from the District, the Grievant later sought to correct
some of his June
6th statements.

The record is rife with examples of employees who were absent from their workplace
without
authorization during working hours or otherwise extended break times. The Principal arrived
at DR's
building midway through DR's shift and found a dark building. After a second incident, DR
continued to
work for a month before resigning. The District took no action prior to this resignation.
With respect to
DR, the District had evidence of far more egregious conduct and, yet, had issued only a
written reprimand.

The District's treatment of LS is also in stark contrast with its treatment of the
Grievant. Although
Supervisor Scullion cites LS's honesty as a significant reason why LS was not terminated,
the February
5, 2003 disciplinary notice indicates that, to the end, LS denied that he was gone more than
20 to 15
minutes, despite the Principal's documentation of an absence of more than 30 minutes.

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MA-13533

The District considered LS to have violated a work rule, but called the Grievant a
thief. The
District conducted surveillance of the Grievant, but not of LS. Significantly, Supervisor
Scullion was aware
that LS's absences from the workplace while in paid status may have been going on for some
time, but he
did not question him regarding the number of times this may have happened.

The Grievant is not a perfect employee, but did have an unblemished disciplinary
record for the
nearly 14 years that he was employed at the District. Early issues regarding outbursts with
co-workers
were resolved when the Grievant took steps to deal with his alcoholism.

To sustain the allegation that the Grievant falsified time cards, the District must
establish that
inaccuracies were deliberate with the intent to defraud the District. The record more
reasonably establishes
that the Grievant had a good faith belief that he had his supervisor's permission to attend AA
meetings
during his work hours and that the Grievant made attempts to minimize any impact upon his
work hours
by routinely leaving the meeting early and providing services to the District prior to his
normal shift hours.
The Grievant lacked intent to defraud the District.

Other employees had been given far less discipline for conduct which 1) plainly
affected their work;
and 2) unquestionably was done "behind the back" of supervision. The zeal with which the
District went
after the Grievant is in stark contrast with the forbearance it offered other employees who
were guilty of
the offenses leveled against the Grievant. This case is rife with evidence of disparate
treatment.

The Union requests that the Arbitrator find that the District did not have just cause to
terminate the
Grievant. The Union further requests that the Grievant be reinstated to his former position
and made whole
for all losses suffered as a result of his unjust termination.

DISCUSSION

District Time Reporting Requirements

From the time that the Grievant was hired until the time of his discharge, the District
prepared its
payroll using paper time cards that were filled out by the employee. (T. 71; 123) Since at
least 1999, the
subject of time cards has been on the agenda at numerous meetings involving District
custodial staff. (Ex.
#6, 7, 8, 12, 13, 14)

Annual meetings of custodial, maintenance and grounds staff are mandatory. (T.
61-62) If an
employee was absent, then they would be sent to a make-up date. (T. 62) Supervisor Scullion
does not
recall that he ever sent the Grievant to such a make-up date. (Id.)

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At the August 19, 2003 annual meeting, Supervisor Scullion prepared an example
which instructed
employees on how to prepare the paper time card. (EX. #12) The minutes of this annual
meeting include
the following:

6) Mark went over time cards, showed example and explained what
he wants to see
on them. Make copy for your own records. . . .

Supervisor Scullion recalls that each employee received a copy of this "Example" at
the August 19th
meeting and that copies were also placed in the break rooms. (T. 21;23) In this "Example,"
the employee
is instructed, inter alia, to write in the time that employee is "In" and the
time that the employee is "Out;"
the times that overtime is earned and the amount of this overtime; and the approximate time
that they took
their ½ hour unpaid lunch.

Supervisor Scullion confirms that, at the August 29, 2003 meeting, employees were
instructed to
write in the approximate time that the employees took their ½ hour lunch. (T. 24)
Supervisor Scullion's
subsequent testimony, reasonably indicates that employees did not always comply with this
instruction. (T.
64)

The Grievant states that, from day one, he wrote on the paper time card when he
came in to work
and when he left work, but that he never wrote in a break or lunch. (T. 266) This testimony
is consistent
with the Grievant's paper time cards for the time period beginning 3/13/06 through 6/4/06.
(EX. 30-36)
On these paper time cards, which were approved by a supervisor, the Grievant does not
identify a lunch
period.

The Grievant states that he never wrote in on his paper time card if he stayed past
11:00 p.m.
unless it was approved overtime, or when he left the building, except when he went home or
left on sick
time. (T. 266; 282-3) The Grievant confirms that, during his tenure with the District,
payroll was based
upon paper time cards. (T. 265)

In August of 2005, Supervisor Scullion introduced True-Time at the annual meeting.
(EX. #14, T.
28) In August of 2005, True-Time was to be used on a test basis for a year. (T. 28)
True-Time, which
was formally implemented in July, 2006, is a record keeping system in which the employee
records his/her
time on a computer, including when the employee punches in and out of work status; earns
overtime; and
uses paid leave. (T. 29)

At "Head Custodian Team Meetings" held on January 18, 2006, February 22, 2006,
March 16,
2006 and April 12, 2006, Head Custodians received updates on True-Time. (EX. 15,
16, 17, 18, 19, 20,
21) At the January 18, 2006 meeting, the Head Custodians were informed that they had until
the first of
February to "play" with the system. (EX. 16) The minutes of January 18, 2006 do not
report the absence
of any Head Custodian.

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MA-13533

The minutes of the February 22nd report only one absence,
i.e., Custodian Schroeder, and the
minutes of the March 16th meeting reflect that the Grievant was present at
this meeting. (EX. #18, 20) The Grievant prepared the minutes for the April 12,
2006 meeting, which minutes state that "Mark
handed out a sheet on True-Time." (EX. 29) This sheet includes the following:

4. 7-minute push will be for punch in and punch out only and
"Lunches and breaks
will be exact time." (EX. #28)

For at least three months prior to his discharge, the Grievant's True-Time verification
report records a time
punched in and out of work, as well as a time punched in and out of lunch break. (EX. #37)

Custodian Marron states that he was given training in True-Time as well as in paper
time cards.
(T. 124) Custodian Marron recalls that True-Time training occurred at the annual safety
meeting, which
involved the entire staff, and at Head Custodian meetings, which he had been invited to
attend because he
was the Union VP. (Id.) When asked if he recalled whether the Grievant was in attendance
at any of these
meetings, Custodian Marron responded "yes." (Id.)

Supervisor Scullion recalls that, approximately two to three months prior to the
Grievant's
discharge, employees' True-Time reports were supposed to mirror the employee's paper time
cards. (T.
92) Supervisor Scullion states that, if an employee indicated that his "Regular Hours"
were 6 to 2:30,
then Supervisor Scullion would expect that employee to be at work during those hours,
except for the half
hour unpaid lunch period. (T. 24) Supervisor Scullion further states that employees are not
supposed to
be late, but that he would not have a problem with an employee who arrived a few minutes
early or a few
minutes late reporting on the time card that the employee had arrived and left at their normal
start and end
times. (T. 65-66)

Head Custodian Grogan states that he received training in True-Time. (T. 199)
According to Head
Custodian Grogan, from this training, he understood that employees were supposed to punch
in when the
employee arrived at work and punch out when the employee left work, with a little leeway
either way. (Id.)
Head Custodian Grogan was questioned and answered as follows:

Q: And was it your understanding that Tru-Time was supposed to
be an accurate
recordkeeping at the time it was being implemented?

A: Yeah, I guess so. Yeah, I mean, I could look the previous
week over and I could
see when I punched in and when I went home, punched for home, and your
breaks and your lunches and all of that stuff. (T. 199-200)

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MA-13533

Custodian Marron understands that, if an employee came in to work early, then the
employee could
leave work early, so long as the employee worked his/her eight hours. (T. 134-5)
Custodian Marron
believes that, when doing so, it would be appropriate to record the employee's regular work
shift hours
on the time card. (Id.) Custodian Marron states that, if you record your regular eight hour
shift on your time
sheet, then you need to work eight hours and fill out the time sheet correctly. (T. 134-5)

Summary

For more than three years prior to his discharge, the Grievant received District
instruction on how
to prepare paper time cards. These instructions were sufficient to inform the Grievant that
he was to
accurately report the number of hours worked on his paper time cards.

The Grievant understood that the District paid the Grievant on the basis of the
information that the
Grievant wrote on his paper time cards. Thus, even without instruction, the Grievant had to
know that he
was to accurately report the number of hours worked on his paper time cards.

It was acceptable for the Grievant to report that he had started and ended his
work shift at his
regular shift times even though the Grievant may have been a few minutes early or late.
However, the fact
that the Grievant could punch in and out a few minutes early or late and still claim his
regular eight hour shift
pay did not provide the Grievant with a reasonable basis to conclude that he had permission
to claim pay
for other time not worked by the Grievant.

On August 19, 2003, Supervisor Scullion directed employees, including the Grievant,
to identify
the approximate time of the ½ hour unpaid lunch period on paper time cards.
Notwithstanding this
direction, it was acceptable for the Grievant to not identify his ½ hour unpaid lunch
hour on his paper time
card.

When True-Time was first introduced, there was a period of time in which
employees, including
the Grievant, were allowed to "play" with True-Time. For two to three months prior his
discharge, the
Grievant knew that when he entered his "True-Time" data, he was to accurately report his
work hours,
including when the Grievant punched in and out of work.

Grievant's Attendance at AA Meetings

At the time of his discharge, the Grievant worked the night shift at Winnequah with
Custodian
Marron and Custodian Meicher. Of these three employees, only Custodian Marron and the
Grievant
testified at hearing.

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MA-13533

At hearing, Supervisor Scullion recalled that, on May 19, 2006, Custodian Marron
and he had a
discussion about Custodian Marron's comp time and that, during this discussion, Custodian
Marron said
that he had to ask Supervisor Scullion about an agreement that Supervisor Scullion had with
the Grievant.
(T. 36) Supervisor Scullion recalls that he then asked what agreement?; Custodian Marron
responded the
agreement about the Grievant's leaving every night; Supervisor Scullion said every night?;
Custodian
Marron responded yes; Supervisor Scullion said how long has this been going on?; that
Custodian Marron
replied I don't know ­ probably three, three and a half years; and that Supervisor
Scullion told Custodian
Marron that he was not aware of this. (T. 36-7) Supervisor Scullion further recalls that
Custodian Marron
said that the Grievant left between 6:00 and 6:30 p.m. and that, on several occasions, the
Grievant told
Custodian Marron, that if Supervisor Scullion ever came into the building, he was to call the
Grievant. (T.
38; 96) Supervisor Scullion's undated written "Rick Ness Investigation Summary" is
consistent with this
testimony, but also states that Custodian Marron told Supervisor Scullion that the Grievant
was gone for
an hour or so. (EX. 42) Supervisor Scullion recalls that he was a little miffed; could not
really believe it;
wrote it all down and then went to talk to Director of Business Services Van Valin to ask if
he could pursue
an investigation to see if it was true. (T. 37). Director of Business Services Van Valin
recalls that, on May
19, 2006, Supervisor Scullion advised her that a custodian had told him that another
custodian had been
attending meetings on work time, claiming that there was some sort of arrangement; that
Supervisor Scullion
stated that he was not aware of any arrangement and that he had not given permission for
someone to leave
work while getting paid; and that Director of Business Services Van Valin decided to conduct
a formal
investigation. (T. 142-3)

Supervisor Scullion states that he conducted surveillance on the Grievant on May 22,
23 and 24,
2006. (T. 37-39) Supervisor Scullion further states that he prepared a report of his
investigation. (T. 43)
This report includes the following:

On 5/22/06 6:03 PM I arrived at the Community Center parking. At 6:23 PM Rick
Ness
left the parking lot in his wife's car. . . . At 7:38 PM Rick Ness returned to the building.
True-Time indicated that he then punched out for lunch at 9:09 PM and punched back
in
at 9:39 PM.

On 5/23/06 6:01 PM I arrived at the Community Center parking lot. At
6:13 PM Rick
Ness left again from Winnequah. At 7:32 PM Rick Ness returned to the building. Tru-Time
indicated that Rick Ness punched out for lunch at 9:29 PM and punched back in at
9:56 PM.

On 5/24/06 I arrived at the Community Center parking lot 6:03 PM. At
6:21 PM Rick
Ness left the parking lot. I proceeded to follow Rick Ness to the Monona Serenity Group
located on Prairie Dock Dr. I returned to the District Office for a Board Meeting that
evening. Tru-Time indicated that Rick Ness punched out for lunch at 9:37 PM and
punched back in at 10:07 PM.

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I proceeded to investigate the web site of this facility and found it to be AA. I
printed the
dates and times of meeting to indicate that other times are available prior to Rick's work
schedule. I reported this information to Mary Ellen Van Valin and informed her of Rick
Ness's and my conversation approximately threes years ago. (EX. #42)

Supervisor Scullion acknowledges that, on the days that Supervisor Scullion conducted
surveillance, he did
not observe the times that the Grievant began or left work. (T. 75)

Custodian Marron recalls that, in the Spring of 2006, during a conversation about
Custodian
Marron's comp time, Custodian Marron stated that, because he was not the Union VP,
Supervisor Scullion
better inform the new VP of what was going on with the Grievant; that he was referring to
the Grievant
leaving for AA meetings; that Supervisor Scullion was very surprised and asked Custodian
Marron what
he meant; and that Custodian Marron told Supervisor Scullion about the Grievant leaving at
night to go to
his meetings. (T. 117-118) Custodian Marron states that he has worked with the Grievant at
Winnequah
for the last seven years; that, for about three years, Custodian Marron has observed the
Grievant leaving
to attend meetings, Monday through Friday; and that the Grievant would leave at
approximately 6:00 p.m.
and return within one to two hours. (T. 115-19)

Custodian Marron states that he thought that the Grievant's leaving work was odd;
that Custodian
Marron broached the subject with the Grievant "a couple of times;" and that the Grievant
told Custodian
Marron that Supervisor Scullion knew about it. (T. 135) Custodian Marron recalls that the
Grievant told
Custodian Marron that, if Supervisor Scullion ever showed up while the Grievant was gone,
Custodian
Marron was to call the Grievant. (T. 120)

The Grievant recalls that, approximately four and one-half years ago, he started
attending AA
meetings at Noon. (T. 241-2) According to the Grievant, he stopped his regular attendance
at Noon
meetings after a year or year and one-half and began to attend AA meetings at 6:30 p.m..(T.
241-2; 247)
When asked how often he attended the 6:30 meeting, the Grievant responded:

On an average, I would have to say for the vast majority of the time, four days a
week,
three and a half. Quite often it was every day of the week. There were times when
something was going on at school, if I was just plain too tired or what have you, maybe it
would only be a couple days a week. . . (T. 247)

According to the Grievant he would arrive at the 6:30 p.m. meeting shortly before or
after it started
and, generally, on average, would leave at 7:10 p.m. (T. 242) The Grievant states that,
before the AA
meetings moved to the present location approximately two years ago, it would take the
Grievant two to
five minutes to drive to the meeting from his worksite and that the drive from his worksite to
the present
location takes approximately five minutes. (T. 242-3) The Grievant states that he was not
secretive about
leaving for the meetings and would usually check in with his fellow custodians. (T. 256)

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The Grievant recalls that, beginning approximately one and one-half months prior to
his termination
from employment; the Grievant took more time than usual to attend the AA meetings. (T.
273-4) When
asked how much more time than usual, the Grievant responded that he did not have a
recollection. (T.
276)

TB states that she has known the Grievant through AA for at least four years; that
she
attends AA
meetings every day; that, for at least three years prior to hearing, she observed the Grievant
attending the
6:30 to 7:30 p.m. AA meetings several times a week, maybe three to four times during a
Monday through
Friday week. (T. 215-217) TB recalls that the Grievant would arrive at, or shortly after, the
start of the
meeting; leave between 7:15 and 7:20 p.m. and that it was rare for the Grievant to stay
until the end of the
meeting. (T. 216; 218)

JS states that he regularly attended the 6:30 p.m. AA meeting on Tuesday and saw
the Grievant
there consistently. (T. 231; 235) JS recalls that the Grievant would arrive five to ten
minutes before the
meeting and leave ten to fifteen minutes before the meeting ended. (T. 231)

MP states that he has known the Grievant through AA for three to four years; that he
attends six
or seven AA meetings per week, most consistently at 6:30 p.m.; and that he would see the
Grievant at this
meeting, on average, two to three times per week. (T. 222) According to MP, the Grievant
would arrive
for the meeting right around the 6:30 p.m. starting time, maybe a little before or later, and
leave about 7:10
p.m. (T. 223)

The Grievant indicates that, at the time that he had his initial conversation with
Supervisor Scullion
regarding AA meetings, the Grievant had been attending AA meetings during his unpaid
lunch, but had been
overextending this lunch period. (T. 243-5) Subsequently, the Grievant was questioned and
answered as
follow:

Q: Now, if you found it difficult to get back within the time frame,
what did you do
about your time?

A: Things needed to be done. I spent too much time away from
the building
earlier, the AA meetings.

Q: So did you feel like you were trying to make up that time?

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MA-13533

A: Yes.

Q: Did you ever leave your work undone?

A: No. (T. 267)

The Grievant recalls that, due to his attendance at the AA meetings, he advised
Supervisor Scullion that
the Grievant did not intend to request overtime for a day that he spent visiting other schools
on behalf of
the District, but that Supervisor Scullion refused this offer. (T. 255)

Custodian Marron, who has worked with the Grievant at Winnequah for seven years,
states that
the Grievant "pretty much always" took his lunch break with Custodian Marron and that
lunch breaks were
half an hour, plus or minus. (T. 136) Director of Business Services Van Valin recalls that,
when she
interviewed the Grievant on June 6, 2006 she asked the Grievant when he typically took his
duty-free
lunch; that he initially responded "9, 9:30" and then said sometimes "6, 6:30." (T. 148) The
Grievant's
True-Time records from February 27, 2006 through June 5, 2006 do not indicate that the
Grievant's lunch
period was taken at "6, 6:30" but do indicate that, on more than fifty occasions, the Grievant
punched in
and out for lunch between 7:45 p.m. and 10:30 p.m. (EX#37) These True-Time records
indicate that the
one-half hour lunch was most frequently taken between 8:30 and 9:45 p.m. (Id.)

Custodian Marron states that his shift and the Grievant's shift were scheduled to end
at the same
time and that "most of the time" he and the Grievant left together at 11:00 p.m.
(T. 120-1) Custodian
Marron's testimony is consistent with the Grievant's True-Time records, discussed above,
which indicate
that, at the times that the Grievant was on his night shift, he punched out at 11:00 p.m. on
more than forty
nights and after 11:00 p.m. on twelve nights. Head Custodian Grogan states that, at
Winnequah, the alarm
is set for 11:30 p.m. and that you need to make special arrangements if your remain in the
building after
11:30 p.m. (T. 208)

On nine of the twelve nights, the Grievant punched out at 11:15 p.m. The
Grievant's paper time
cards, which record overtime, do not establish that the Grievant requested overtime for any
of these extra
15 minutes. On two of the twelve nights, the Grievant punched out at 12:00 a.m. and
requested overtime
for both of the extra hours. (EX. #33) On one of the twelve nights, the Grievant punched
out at 11:30
p.m. His paper time card indicates that, on this day, he worked his regular night shift from
3:00 p.m. to
11:30 p.m. (EX. #35)

The Grievant states that he typically arrived at work prior to his 2:30 p.m. start time
and then would
perform work related tasks, such as speaking with Head Custodian Grogan, checking to see
if there were
any notes on his table; straightening things up; checking and answering emails, including
personal emails;
checking "school dude," and organizing things. (T. 251-2) John Grogan, who has been a
Head Custodian
at Winnequah since approximately 1995, states that he normally returns to the maintenance
office at 2:15
p.m.; that he has seen the Grievant in the office at that time; that half the time the Grievant
has been eating
his lunch; that half the time the Grievant has been at the computer; and that Head Custodian
Grogan had

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MA-13533

not observed what the Grievant was doing on the computer. (T. 193; 198-99; 200)
Head Custodian
Grogan states that, while in the maintenance office, he would have conversations with the
Grievant
regarding District operations. (T. 200) Head Custodian Grogan does not recall observing the
Grievant
cleaning the building prior to the start of the Grievant's night shift. (T. 197-98)

John Walsh has been a District Service Person for ten years, with the bulk of his
responsibility at
Winnequah. (T. 181-2) District Service Person Walsh states that he is typically in the
maintenance office
by 2:20 p.m. and has observed the Grievant eating; getting ready to punch-in; getting
organized for work,
e.g., putting his lunch in the refrigerator and settling in; and having
discussions with Head Custodian Grogan.
(T. 184-7) District Service Person Walsh has observed the Grievant at the computer, but
does not know
what the Grievant was doing at the computer. (T. 185-6) District Service Person Walsh
states that he did
not observe the Grievant eating while the Grievant was at the computer and that maybe half
the time the
Grievant was eating and half the time the Grievant was at the computer. (T. 187-88) District
Service
Person Walsh does not recall observing the Grievant performing any cleaning duties prior to
2:30 p.m. (T.
185)

The Grievant's True-Time records, identified above, indicate that, at the times that
the Grievant
worked his night shift, he generally, but not always, punched in at 2:00 p.m. on Fridays
(which would be
consistent with the testimony that the Head Custodian meeting was held at 2:00 p.m. on
Friday) and,
generally, but not always, claimed one-half hour of overtime for that day. These True-Time
records also
indicate, between February 27, 2006 and June 5, 2006, the Grievant punched in at 2:30 p.m.
on more than
forty days.

On February 28, 2006, the Grievant punched in at 2:00 p.m. and then again at
2:15 p.m. It is not
evident that the Grievant claimed any overtime for that day. On March 16, 2006, the
Grievant punched
in at 12:30 p.m. and claimed 2 hours of overtime for his time between 12:30 and 2:30 p.m.
On April 12,
2006, a day on which the Head Custodial Meeting was held at 1:00 p.m., the Grievant
punched in at 1:00
p.m. and claimed one and one-half hours of overtime for his time between 1:00 and 2:30
p.m. On April
21, 2006, the Grievant punched in at 2:00 p.m. and claimed one-half hour of overtime for
his time between
2:00 and 2:30 p.m. On May 17, 2006 the Grievant punched in at 1:00 p.m. and claimed
one and one-half
hours of overtime for his time between 1:00 and 2:30 p.m.

The Grievant was questioned and answered as follows:

Q: How did you always know you had worked 40 hours a week?

A: How did I know I worked 40 hours a week? I did my work.

Q: I don't think that quite answers the question. How did you
know that you worked
40 hours a week, not whether you get your work done.

A; I was really tired when I came home.

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MA-13533

Q: Again, I'm going to ask the same question. How did you
know? Was there
anything that you looked at or any records that you kept - -

A: Mr. Scullion signed my timecards and said there was 40 hours a
week there.

Q: How did you know, since you left during your work shift, that
you worked 40
hours a week?

A: I didn't keep very close tabs of it. I never saw a need to. I
was never told to. I
was never told to record any of it, nor did anybody else when they did certain
things. (T. 279)

. . .

Q: Now, how much time do you think that you missed working for
the district that
you didn't report, all together, any idea?

A: As I said, the District would not give me my timecards nor the
True-Time.

Q: And you never kept any record all yourself?

A; I wasn't asked to. Again, this was a very informal deal. There
was an agreement.
(T. 287)

. . .

Q: You don't know whether you made all of it up or some of it or
any of it. Which
is it?

A: I made up the time. Whether I made up all of it, I don't know.
It seems rather
immaterial to me considering I offered to give some time back and Mark said no.
(T. 299)

. . .

Q: I'm curious about the issue of the time frame over which you
would make up your
time. In your mind, were you trying to make up time minute by minute each day
or did you have sort of a broader time frame that you thought that you could make
up your time? Do you understand what I'm asking?

A; I think so. It was more in a broad general concept. There was
not a big concern
placed on making up the time in the first place. The biggest concern was making
sure that the job was done every night. That is where the emphasis was put on,
and when I spent more time than usual, you know, at a meeting, talking to
somebody afterwards that needed to talk, I had an obligation to make up that time.
Now, was it that particular night? No, not necessarily. . . . . as long as the work
was done that night, it didn't really matter when I made it up, in my mind. (T. 300-01)

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Summary

For three years prior to his discharge, the Grievant regularly left work during his
normal night shift
of 2:30 p.m. to 11:00 p.m. to attend three to four AA meetings per week that were held
between 6:30 and
7:30 p.m. Including travel time, the Grievant's attendance at these meetings involved, at a
minimum, forty-five minutes per meeting. At times, the Grievant's attendance at these
meetings involved more than an hour.
On days that the Grievant was attending these AA meetings, he also regularly took his
one-half hour unpaid
lunch.

At times, the Grievant arrived at the worksite prior to the start of his regular night
shift and left the
worksite after the end of his regular night shift. At times when the Grievant arrived at the
worksite prior to
the start of his regular shift and left the worksite after the end of his regular night shift, the
Grievant
performed work for the District without requesting, or receiving, payment for such work.
Neither the time
that the Grievant offered to the District for visiting other schools on behalf of the District,
nor the other times
that the Grievant performed work outside of his normal work schedule without requesting
pay, is sufficient
to offset, in any significant amount, the time that the Grievant used to attend AA meetings
during his regular
night shift.

Alleged "Agreement" Between the Grievant and Supervisor
Scullion

The Grievant and Supervisor Scullion each recall a conversation in which the
Grievant
brought up
the subject of AA meetings. At hearing, Supervisor Scullion recalled that, three to four
years ago,
Supervisor Scullion was at Winnequah; that the Grievant approached him as they were in the
break room;
and that the Grievant told Supervisor Scullion that the Grievant had some personal issues,
that the Grievant
was an alcoholic, and that the Grievant wanted to continue going to classes. Supervisor
Scullion was unsure
if the Grievant mentioned Serenity House or another meeting location. (T. 40-1) Supervisor
Scullion recalls
that he was receptive to the idea of the Grievant attending AA meetings and responded by
telling the
Grievant something like "nice job," " I'm glad you're doing that. It's a hard thing to do.
The district is here
to help you out as best we can." (T. 41)

Supervisor Scullion recalls further conversation as follows:

We talked a little bit about, I asked him when, you know, what time or what days are
you
looking at, and he said maybe one or two hours a week during the evening, he wasn't sure,
because he was attending classes at around noon or 12:30 and it might work out that way.
And I informed him at that time that the district would be willing to work with him, but he
needed to have eight hours a day and 40 hours a week in, and he had some choices that
he could use vacation time, comp time, sick time or he could make up his time. (T. Id.)

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MA-13533

Supervisor Scullion maintains that, after this discussion, the Grievant never came to
Supervisor Scullion to
tell him of any definite plans to attend AA meetings. (T. 42)

Subsequently, Supervisor Scullion was questioned and answered as follows:

Q: Now, when you met with Rick, and he mentioned to you that he
would like to go
to these AA meetings and some of them would be during the shift, right?

A; He did not tell me that, no.

Q: Well, you said that he told you that.

A: He was thinking about that. He needed to give me an answer
when he was
leaving.

. . .

Q. . . . And you told him that he could either use comp time or
vacation. He could come
in early or stay late, but whatever he did, he had to make sure he gets eight hours
a day, and put in 40 hours per week?

Rick had approached me in the custodial break room with a confidential
question.
No other witnesses were present during this conversation. Rick informed me that he was
a recovering alcoholic and that he wanted to continue going to meetings. I informed Rick
that I was proud of his steps he was taking to recovery and that it's a hard step. I also
informed him that we (the District) would work with him so that he could continue his
meetings for recovery. I asked Rick, how many meetings are we talking about. Rick
indicated to me that it would be maybe once or twice a week, no more than an hour
because the facility was not far away. He also indicated that maybe this could be done off
work hours as well depending on the class schedule. I informed him that we could work
with that however; he had some choices to make. He could either use comp time, vacation
time or come in early to make up the time as long as he got his 8 hours per day in. He was
not sure at the time if he wanted to lose comp time or vacation. I informed him at that time
that he needed to let me know so I could let Mr. Avery know (Former Business Director).
He indicated he would let me know when he figured it out. He also asked if this could be

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kept confidential. I informed him that whatever we agreed upon is no one else's
business.
I just need to keep my boss informed. I immediately informed Mr. Avery of our
conversation and informed him that I would let him know Rick's decision as soon as Rick
informed me. Approximately three months later Mr. Avery asked if Mr. Ness had
informed me on what choice he was going to do. I informed Jeff at that time that I had not
heard from Rick and I assumed that he found meetings off his work hours as previously
discussed. Mr. Avery is willing to be witness to these statements. (EX. #42)

. . .

At hearing, the Grievant was questioned and answered about his attendance at AA
meetings as
follows:

Q: Now, what made you think that you could do this
during your scheduled work shift?

A: Well, initially I wasn't so sure I could. When I
initially got into AA, I made a
commitment to my sponsor. He asked me if I was willing to go to any lengths to
stay sober. I said yes, I'm willing to sponsor you then. He said one of the things
I'm going to ask you to do is to go to at least one meeting a day for 90 days. They
called it 90 and 90, but it is up to the individual, but I made that commitment.

At some point, I couldn't make it to a noon meeting. I went to a 6:30
meeting. And
I figured, I go down there and leave early. I had a hard time making it back within
that time frame. I went down and caught part of a meeting. I had done that a few
time it had happened, and then I realized I better talk to Mark about this, and I
didn't want to get in trouble. I approached Mark. . . . (T. 243)

The Grievant then explained that he told Supervisor Scullion, i.e.,
Mark, who is sponsor was and that
"Mark" had known this sponsor for years. The Grievant's testimony continues as follows:

. . . and I told him (Mark) what I had been doing up to that point, and I told
him that
I had gone to some meetings. I'm getting back a little late. It has happened, and
you know, where can I go from here? Is this something I can do? And he said
yeah, you can't get anything done in a half hour is what I remember him saying.

Q: What was he referencing?

A: Half an hour lunch time.

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Q: Okay. So he said you can't get anything done in
a half hour. What else did he say?

A: He said that's fine. Do what you need to do. He
gave me some positive . . . (T.
244)

Following an interruption for an objection and response, the Grievant continued:

He said do what you need to do. He was giving me some positive reinforcement.
He
was
glad I was doing it, the way it seemed, and I was getting his blessing was the gist of it. He
said do what you need to do. Make up your time however, but make sure that the guys
that you work with are cool with this, and make sure the work gets done. (T. 244-45)

Subsequently, the Grievant was questioned and answered as follows:

Q: Whatever Mr. Scullion said, you understood that
you were to work 40 hours per
week?

A: Yes. Again, that was not the emphasis. The
emphasis was making sure the work
gets done. Mark was in favor of me going to the meetings. (T. 287)

. . .

Q: He agreed to have you work less than 40
hours per week?

A: I had an agreement with him for me to do this, to
go to the meetings, so ­

Q: Did you have an agreement with him to work less
than 40 hours per week?

A: I guess I did. (T. 299)

At some point, perhaps a year or two prior to the Grievant's discharge, Supervisor
Scullion
conducted an audit, or time study, of the custodians at Winnequah. (T. 97) The Grievant
confirms that,
during the time that Supervisor Scullion shadowed employees while conducting this time
study, the Grievant
did not attend AA meetings during his work shift because it did not seem appropriate. (T.
248) The
Grievant was then questioned and answered as follows:

Q: Why?

A: Because there was something wrong, and I didn't know what it
was, and Mark
wouldn't tell me, nor would he tell anyone else. He was going to work with us,
and that's all there was to it. He didn't say that there was a problem with our
cleaning, . . . I don't really know what the problem was from Mr. Scullion. (Id.)

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The Grievant recalls that, after this time study, Supervisor Scullion initiated a
conversation with the
Grievant about the time study; that, during this conversation, the Grievant mentioned that he
went to the
meetings at night; that Supervisor Scullion stated that the Grievant had not been going to the
meetings at
the time of the study; that the Grievant responded yeah, and that he had not gone to a
meeting since, which
was over a month; that Supervisor Scullion said that he hoped that it was nothing that
Supervisor Scullion
said; and that the Grievant responded that yes, it was something that Supervisor Scullion
said. (T. 249-50)
The Grievant states that, after this conversation, he did resume his attendance at the evening
meetings and
that he thought that would be appropriate because "Mark said I hope that you didn't stop
going to the
meetings because of anything that I said." (T. 250)

Summary

Contrary to the argument of the Union, Supervisor Scullion did not have any
obligation to follow-up
on the initial conversation with the Grievant by contacting the Grievant to determine what the
Grievant had
decided to do about attending AA meetings or for any other purpose. The Grievant's
testimony that he
"guessed" that he had an agreement with Supervisor Scullion to work less than forty hours
per week is not
only contradicted by the testimony of Supervisor Scullion, but also, is inconsistent with the
Grievant's
testimony that he was told that he needed to make-up his time; that he understood that he
was to work
forty hours per week; and that he made up some, if not all, of the time that he spent at AA
meetings.

Supervisor Scullion did not agree that the Grievant could attend AA meetings on
District time. Nor
did Supervisor Scullion otherwise give the Grievant permission to claim pay for time not
worked.

Meetings and Conversations with Director of Business
Services

Director of Business Services Van Valin recalls that Supervisor Scullion suggested
that he conduct
surveillance; that Supervisor Scullion reported back on his surveillance; that Director of
Business Services
Van Valin then decided to interview the two night custodians that worked with the Grievant;
that one of
the Custodians was very hesitant to answer questions; that the other Custodian reported that,
for three
years, the Grievant regularly left work for an hour or two; and that Director of Business
Services Van Valin
then interviewed the Grievant. (T. 143-146) Director of Business Services Van Valin recalls
that the
interview of the Grievant occurred on June 6, 2006. (T. 147) According to Director of
Business Services
Van Valin, after the Grievant declined Union representation, she told the Grievant that there
had been an
allegation that custodians may be leaving during paid time; that she confirmed the Grievant'
shift and asked
the Grievant when he typically took his duty-free lunch; and that the Grievant initially
responded "9, 9:30"
and "then just almost as an afterthought, he said, well, sometimes 6, 6:30." (T. 147-8)

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Director of Business Services Van Valin recalls that, at the onset of the investigative
meeting, the
Grievant stated that, for approximately three years, he had been attending AA meetings and
that three years
ago he had a meeting with Supervisor Scullion in which Supervisor Scullion stated that it was
ok for the
Grievant to attend meetings. (T. 148) Director of Business Services Van Valin recalls that
she then asked
how many days per week that the Grievant went to these meetings and that the Grievant
initially said three
to four meetings, but, at one point the Grievant said it was up to five days per week. (Id.)
According to
Director of Business Services Van Valin, the Grievant initially stated that he would be gone
for 45 minutes
"tops," but following further questioning, the Grievant said sometimes up to an hour and
one-half and that
the number of days and length of time changed during this meeting. (T. 148-9) Director of
Business
Services Van Valin states that the Grievant's statements were "fragmented" and that it was
very difficult
to get a consistent story. (T. 149)

Director of Business Services Van Valin recalls that the Grievant initially stated that
he had never
been informed as to how to fill out a paper timecard or True-Time; that she presented the
Grievant with
copies of his paper timecard and True-Time record for the period that included May 22, 23
and 24, 2006(EX. 35 and 37); that the Grievant confirmed that it was his signature on the paper
time card and that it
accurately reported his time; that the Grievant verified that it was the True-Time record that
he had
submitted electronically; that Director of Business Services Van Valin then had Supervisor
Scullion discuss
his surveillance of the Grievant; that Director of Business Services Van Valin told the
Grievant that she had
asked for honesty, asked if there was anything else the Grievant wanted to change; and that
the Grievant
sat back and replied "It looks like you got me. Looks like I'm in a lot of trouble. What
would you like me
to do?" (T. 151-2) Director of Business Services Van Valin recalls that she responded that he
needed to
be honest, that he had not been honest and that the Grievant was being placed on paid
suspension pending
the conclusion of the investigation. (T. 152)

Director of Business Services Van Valin states that she subsequently selected two
custodians at
random and questioned them as to whether or not they had received adequate training in
paper timecard
and True-Time reporting and each, independently, confirmed that they had. (T. 152-3)
Director of
Business Services Van Valin recalls that, on Thursday June 8th, she
returned the Grievant's telephone call
and that, during their telephone conversation, the Grievant indicated that he had lied during
the June 6, 2006
investigatory meeting; that his AA sponsor had advised him to come clean; that she asked the
Grievant how
much he had stolen from the District and the Grievant responded that he did not know and
was there
anything that he could do; and that she told the Grievant that he needed to figure out how
much he owed
the District. (T. 153-4)

Director of Business Services Van Valin states that, later that day, she called the
Grievant to inform
him that she had completed her investigation; that she would like to meet with the Grievant
the next day at
10:00 a.m. and that he should bring Union representation because discipline would be
involved; that the
Grievant brought a Union representative with

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him to the Friday meeting; that, at this meeting, the Grievant admitted that he had lied
to her during the
investigatory meeting of June 6th; that she asked the Grievant if he had
figured out how much time he had
stolen from the District; the Grievant indicated that he had not; and that she told the Grievant
that she had
calculated a ballpark figure of $20,000 and that the District could pursue criminal relief, as
well as
termination; and that she gave the Grievant the option of voluntarily resigning in lieu of
termination. (T. 154-5) Director of Business Services Van Valin states that, at the Friday
meeting, she gave the Grievant three
reasons for his termination, i.e., stealing district time, knowingly falsifying
the timecard; and knowingly and
admittedly lying during the investigative process. (T. 155-6) Director of Business Services
Van Valin does
not recall the Grievant taking issue with her, but does recall that the Grievant looked at
Supervisor Scullion
and commented that we all need to be honest and that the Grievant stated that he had made
up some, but
not all, of the time. (T. 156) Director of Business Services Van Valin states that, at a later
date, the
Grievant telephoned her to advise her that he would not be resigning. (Id.)

The written notes of the June 6th and 8th meetings
prepared by Director of Business Services Van
Valin are consistent with, but more extensive, than her testimony. According to these notes,
the Grievant
stated that he had never been told to write his duty-free lunch on his timecard; that the
Grievant
acknowledged that he left District grounds without indicating the absence on his timecard;
that, as
Supervisor Scullion recalled the conversation that occurred three years ago, Supervisor
Scullion had told
the Grievant that he had three options to attend AA meetings: 1) use accumulated comp time,
2) use sick
time or 3) come in early or leave late in order to make up the time and that the Grievant
quoted what
Supervisor Scullion said "just make sure that you get your eight hours in;" that the Grievant
recalled a
second conversation, which Supervisor Scullion did not recall, in which Supervisor Scullion
asked the
Grievant "Are you working 8 hours? To which the Grievant responded "you know I'm not
here all the
time;" and that the Grievant recalled a third conversation in which the Grievant indicated to
Supervisor
Scullion that Supervisor Scullion had been really good to the Grievant about attending
meetings, that the
Grievant did not need to receive overtime for the hours visiting the Elkhorn and Lake
Geneva Schools, that
Supervisor Scullion should put it toward the Grievant's time and that Supervisor Scullion
stated that the
Grievant would need to be paid, like the other support staff personnel. (EX. #41) Supervisor
Scullion, who
was present at the meeting of June 6th, recalls that, after the Grievant was
advised of the surveillance, the
Grievant said "you've got me. I guess I'm in a lot of trouble."(T. 49)

The Grievant recalls that, after he rejected Supervisor Scullion's suggestion that he
obtain Union
representation, he and Supervisor Scullion went into Director of Business Services Van
Valin's office and
he was questioned about his hours and breaks. (T. 253) The Grievant recalls, in particular,
being asked
"When did you take your break," "Are these the only breaks that you take?" and that the
Grievant said that
he took his supper at 6:30, because he attended AA meetings and that Mark knows that.
(Id.) According
to the Grievant, Supervisor Scullion then made a motion that caused the Grievant to conclude
that
something was not right. (T. 253)

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The Grievant recalls that he was then asked how long he spent at the meetings and
whether it was
longer than his break; that the Grievant replied "no;" and that Director of Business Services
Van Valin
asked the Grievant "pointblank" "Did you ever spend any time longer than your break?" and
the Grievant
said "Maybe," but, basically, denied it. (T. 253-4) The Grievant states that the conversation
then focused
on whether or not Supervisor Scullion was aware that the Grievant was going to meetings.
(T. 254)
According to the Grievant, Supervisor Scullion stated that the two had had a conversation
four years ago
and that there was never another word about it; that the Grievant responded that there was;
that the
Director of Business Services asked when; that the Grievant responded a week ago and then
described
a telephone conversation in which Supervisor Scullion called the Grievant at home to ask if
the Grievant
wrote in his time card for the trip visiting the schools; that the Grievant replied "no;" that
Supervisor Scullion
told the Grievant that he needed to write it in; and that the Grievant responded that he had
not planned on
getting paid for it, it was something that the Grievant had wanted to do, and that the
Grievant appreciated
that Supervisor Scullion allowed him to go to AA meetings. (T. 254-55) According to the
Grievant,
Supervisor Scullion did not respond to any of that. (T. 255) The Grievant recalls that, the
day after the
telephone conversation, that Supervisor Scullion approached the Grievant at work and asked
if the
Grievant had written in the overtime; the Grievant responded yes; and then Supervisor
Scullion left. (Id.)
According to the Grievant, Supervisor Scullion denied that the Grievant had mentioned
anything about AA
meetings and then the Grievant became angry and said "okay, fine you've got me."
(T. 256) According
to the Grievant, he was making the point that, if Supervisor Scullion was not going to tell the
truth, then
there was not much that he could do about it. (T. Id).

The Grievant recalls that, after the meeting of June 6th, he spoke
with his AA sponsor. (T. 259)
The Grievant further recalls that, after this conversation, he left a message for Director of
Business Services
Van Valin and, when she returned his call, he stated, inter alia, that he had
spoken with his sponsor; that
he had some things that had to be straightened out; that he had not been completely honest;
that he had
taken more time than usual for the last month, month and one-half; that Director of Business
Services Van
Valin asked if he was sticking to his story about thanking Supervisor Scullion for letting him
go to AA
meetings and that he had wanted to donate the time for the Lake Geneva trip; that he said
yes, that is the
truth; and that he again apologized for her having to go through all of that. (T. 260-2) At
hearing, the
Grievant confirmed that, when he was first interviewed by Director of Business Services Van
Valin, he lied
about being gone. (T. 291)

The Grievant states that, at the meeting attended by Union VP Strausberg, and in
response to
Director of Business Services Van Valin's statement that they had been looking for honesty,
he directed
a comment toward Supervisor Scullion, i.e., "Yes, I was hoping for honesty
all the way around." (T. 264)
According to the Grievant, he made that statement because Supervisor Scullion had sat there
and lied and
hung the Grievant out to dry. (T. 264)

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Summary

Director of Business Services Van Valin states that the Grievant admitted that he had
lied during
the investigative meeting of June 6, 2006. At hearing, the Grievant admitted that he lied to
Director of
Business Services Van Valin during the June 6, 2006 investigative meeting.

Conclusion

For three years prior to his discharge, the Grievant prepared and signed paper time
cards claiming
pay for working his regular eight hour night shift when the Grievant knew that he had not
worked his regular
eight hour night shift due to the fact that the Grievant had attended AA meetings during his
regular eight hour
night shift. The amount of time claimed, but not worked by the Grievant, varied between
forty-five minutes
to over an hour per meeting attended. Neither the time that the Grievant has worked outside
of his regular
eight hour shift without claiming pay, nor the overtime pay that the Grievant tried to decline
for visiting other
schools on behalf of the District, has compensated the District, to any significant degree, for
the pay that
the Grievant has claimed for time not worked due to his attendance at AA meetings.

The Grievant did not have an agreement with Supervisor Scullion that permitted the
Grievant to
attend AA meetings on District time or otherwise claim pay for time not worked. The
Grievant did not have
a reasonable basis to believe that he had such agreements. The Grievant could not have a
good faith belief
that he could attend AA meetings on District time so long as the Grievant got his work
done.

For several months prior to his discharge, the Grievant knew that the District
required
him to
accurately report his work time when he made his True-Time entries. During this time
period, the Grievant
did not accurately report his work time when he made his True-Time entries because the
Grievant reported
that he was at work at times that the Grievant knew that he was attending AA meetings.

The record fails to establish that the Grievant admitted that he falsified both paper
and
True-Time
cards for approximately a three-year period of time. The record establishes that the Grievant
knowingly
falsified paper time cards for approximately a three-year period of time and that the Grievant
knowingly
falsified True-Time reports for two to three months prior to his discharge.

The term "defraud" may be used to describe a crime or, in a more general sense, to
describe
deception deliberately practiced to secure a gain to which one is not entitled. This is not the
forum to
prosecute a crime and the undersigned makes no determination as to whether or not the
Grievant has
committed a crime.

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When the Grievant prepared paper time cards claiming that he had worked his regular
eight hour
shift on days that the Grievant knew that he had attended AA meetings during his regular
eight hour shift,
the Grievant deliberately deceived the District to secure pay to which he was not entitled.
The record
establishes that the Grievant knowingly defrauded the District of payroll attributable to time
not worked for
approximately a three-year period of time. The record fails to establish that the Grievant
admitted that he
defrauded the District of payroll attributable to time not worked for approximately a
three-year period of
time.

The Grievant admits that he lied to Director of Business Services Van during the
June 6, 2006
investigative meeting. The record establishes that the Grievant knowingly and admittedly
lied to
Administration during the investigative meeting that occurred on June 6, 2006.

The record is sufficient to establish that the Grievant has engaged in misconduct for
which he was
disciplined. The established misconduct is sufficiently egregious to warrant discharge.

Mitigating Circumstances and/or Disparate Treatment

The Grievant is a fourteen year employee with no prior disciplinary record. The
Grievant's one
evaluation, although indicating a need to improve in a number of areas, was apparently
satisfactory. (T. 70)

For the last three of the Grievant's fourteen years, the Grievant regularly left the
worksite at times
in which he was being paid to work for extended periods of time and falsified time cards by
regularly
claiming pay for time not worked. The Grievant's work record is not a mitigating factor.

In arguing that the Grievant has been the recipient of inappropriate disparate
treatment, the Union
relies upon the District's response to the conduct of lead Custodian DR. It is evident that
current District
Director of Instruction William Breisch, who was then a Principal at DR's school, concluded
that, on one
evening in January of 1997, lead Custodian DR had been absent from her building during
work time. (T.
102; 105-6; 111-12) When Principal Breisch confronted DR, approximately one and one-half
hours after
he entered the building and had not been able to find DR, DR acted like she had been there,
but did not
offer any explanation. (T. 112) DR was the only evening Custodian in the building. (T. 104)
Principal
Breisch reported this incident to DR's supervisor. (T. 106)

DR's supervisor investigated and then issued DR a disciplinary letter dated January
22, 1997. (T.
107; EX. # 53) This supervisor did not testify at hearing and, thus, the only evidence of
conclusions
reached during this investigation are those reflected in the disciplinary letter. Although it is
evident that
Principal Breisch is convinced that DR was absent from the

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building during work time, a fair reading of the disciplinary letter establishes that DR
was disciplined for not
providing appropriate cleaning and security duties. DR was warned that "Most importantly
you must be
working at Nichols if your time card reads that you are, if you were not and you put on your
time card that
your were, than you falsified your time card and you would be terminated."

The record reasonably establishes that DR's supervisor did not conclude that DR had
been absent
from the building during work time. The record provides no reasonable basis to conclude
that DR's
misconduct was similar to, or more egregious than, the Grievant's misconduct.

On or about March 20, 1997, Principal Breisch made a written report to DR's
supervisor in which
he described an incident in which he observed that the DR was not in the gym at 2:30 p.m.,
as instructed;
did not respond to pages; was not found when Principal Breisch checked the locker rooms
and custodial
room; and did not arrive at the gym until 3:00 p.m. (EX. #54) According to this
report, Principal Breisch
asked DR where she had been and DR responded that she had been in the Pupil Services
office making
a telephone call and that she had not answered her page because she was not wearing a
pager. The
record provides no reasonable basis to conclude that, on or about March 20, 1997, DR
engaged in
misconduct that was similar to, or more egregious than, the Grievant's misconduct.

The record indicates that this second incident involving DR occurred on March 20,
1997; that the
incident was reported to DR's supervisor on March 24, 1997; that District Administration
made the
decision to terminate DR; and that DR resigned prior to the meeting in which she was to be
notified of her
termination. (T. 109; EX. #54) Contrary to the argument of the Union, it is not evident
that DR continued
to work for more than a month prior to her termination. Rather, the record establishes only
that the
termination meeting was scheduled for April of 1997 and that DR resigned prior to that
meeting.

Supervisor Scullion was first advised of the Grievant's alleged misconduct on May
19, 2006. The
Grievant was not discharged until June 9, 2006. Thus, the fact that DR continued to work
after District
Administration received a report of her misconduct is consistent with the Grievant's situation.
The evidence
of DR's misconduct and the District's response thereto does not establish that the Grievant
has been the
recipient of inappropriate disparate treatment.

It is evident that, over the years, District employees under Supervisor Scullion's
supervision have
extended their lunch and break period both on and off the premises. That some break
"extension" is
tolerated is evidenced by Supervisor Scullion's August 19, 2006 direction to write in the
"approximate"
time of the ½ hour unpaid lunch; Custodian Marron's testimony that lunch breaks were
half an hour, plus
or minus; and Supervisor Scullion's testimony that he observed a surveillance tape which
indicated that
night Custodians were extending their break by fifteen minutes, but did not discipline the
Custodians. (T.
86-7; 136)

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MA-13533

It is also evident that not all break "extensions" have been tolerated. According to
Supervisor
Scullion, Head Custodian S, who lived two doors down from his school, was disciplined for
extending
breaks on two occasions, one of which involved a lunch break and one of which involved the
fifteen minute
break. (T. 78-79)

On February 3, 2003, S received a notice from Supervisor Scullion advising S that
the District was
investigating a complaint that S was absent from the workplace without permission. (EX.
#50) On
February 5, 2003, S received a disciplinary letter from Supervisor Scullion in which
Supervisor Scullion
found that S had a "violation of time use." In this letter, Supervisor Scullion stated,
inter alia:

It is clear that there is a violation of time use. As stated in the union contract section
2.03,
the Board agrees to maintain certain amenities of work and one 15 minutes
coffee break
per day. This is a paid break and you are not allowed to leave the building unless
approved by your immediate supervisor. I have also stated at the annual safety meeting
for the last three years that you're entitled to one 15 minute break and ½ hour lunch,
any
time beyond that, you will be written up for. You must inform the office staff at anytime
when you leave the building and who will be the emergency contact person when you are
not available. It is imperative that these rules are followed.

Discipline

This letter will be laced in your personnel file. Any future incidences of this nature
will
result in disciplinary actions, which may include suspension without pay and/or termination.

In this letter, Supervisor Scullion indicates that S readily admitted that he had left the
building during his
fifteen minute break time; that S denied that he was gone more than 30 minutes as alleged by
the Principal;
and that S maintained that he was gone no more than 20 to 25 minutes. Supervisor
Scullion states that this
was the first report that he had received about S extending time. (T. 79) The record does
not establish
otherwise.

Like the Grievant, S readily admitted that he had been away from the workplace and
denied that
he had been absent as long as alleged by others. S and the Grievant were each away from
work when they
were being paid to be at work, but unlike the Grievant, the evidence of S' misconduct
indicates that it was
an isolated incident involving approximately fifteen minutes of work time.

By letter dated March 4, 2005, Supervisor Scullion advised S that he was being
suspended for
three days for a violation of time use. (EX. #52) The disciplinary letter indicates that
Supervisor Scullion
had received three complaints from the Principal, i.e., that, on February 22,
2005, S had left the building
on his lunch period and extended this lunch

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MA-13533

period by approximately 15 minutes; that the Principal had received reports from
"someone" in the back
area that S was taking longer than his fifteen minute break by talking excessively; and that S
was also
regularly talking to staff members about non-work related issues during work time.

While this letter is not without ambiguity, it is most reasonably construed to be
imposing discipline
for S's February 22nd conduct in extending his lunch break by
approximately fifteen (15) minutes; not
obtaining approval for this extension; and misrepresenting his time on his February 22, 2005
time card.
Such a conclusion is consistent with Supervisor Scullion's testimony. (T. 81-82)

In this letter, Supervisor Scullion states that he met with the Kitchen Manager to
inquire about her
accusations that S was taking extended breaks and that the Kitchen Manager indicated "that
on several
occasions (S) takes extended breaks past the 15 minutes in the back room area several times
a day."
Apparently, the Kitchen Manager is the one who reported that S was extending his fifteen
minute breaks
by "excessive" talking. The accusation that S was "extending" his fifteen minute break by
talking to other
employees while at the worksite does not involve misconduct that is similar to, or more
egregious than, the
Grievant's misconduct.

In leaving the building and extending his lunch by approximately fifteen minutes, S,
like the Grievant,
was absent from work while on work time. The prior disciplinary letter establishes that
Supervisor Scullion
knew that this was not the first incident of absence from work at times that S was being paid
to work.
However, Supervisor Scullion's testimony regarding Principal Rene's "concerns" "that this
had been going
on evidently" is too vague to reach any conclusion regarding the duration and frequency of
S's absences
from the workplace while in pay status. (T. 89) Having no reasonable basis to conclude
that S had more
than two incidents of absence from work while on work time or that either absence involved
more than
approximately fifteen minutes, it cannot be reasonably concluded that S' misconduct is
similar to, or more
egregious than, the misconduct for which the Grievant was disciplined.

As the Union argues, Supervisor Scullion did not conduct surveillance of others who
engaged in
misconduct. The District, however, is not required to use the same investigative tools in
every instance of
alleged misconduct.

It is not evident that Supervisor Scullion's surveillance of the Grievant was conducted
for any
purpose other than determining whether or not the Grievant was leaving the workplace as
reported by
Custodian Marron. As discussed above, Custodian Marron reported that, for three years,
the Grievant
had left work for between one and two hours every night with the agreement of Supervisor
Scullion. It is
not evident that Supervisor Scullion had ever received another such report. Supervisor
Scullion's behavior
in conducting surveillance of the Grievant does not indicate that the Grievant has been the
recipient of
inappropriate disparate treatment.

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Had the Grievant continued to attend AA meetings during his unpaid one-half hour
lunch period
and not returned from this lunch period precisely within the one-half hour, then there may be
merit to the
Union's argument that the Grievant has been the recipient of disparate treatment. This,
however, is not a
case of an employee extending a lunch or break period.

As the Union argues, other employees have engaged in misconduct and received less
discipline than
the Grievant. It is not evident, however, that any other employee regularly took his one-half
hour lunch
break and then also, over a three year period, regularly left work three to four days per week
for at least
forty-five minutes per day for the purpose of attending to personal business.

The Grievant's misconduct is distinguished from that of the other employees on the
basis of kind
and/or degree. The Union's contention that the Grievant had been the recipient of
inappropriate disparate
treatment is without merit.

As the Union argues, the parties' collective bargaining agreement does not define the
burden of
proof that must be applied in determining "just cause" for discharge. Under either standard
of proof argued
by the parties, the District has just cause to discharge the Grievant. Accordingly, the
grievance is denied
and dismissed.

Based upon the above and foregoing and the record as a whole, the undersigned
issues
the
following